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The Court of Appeal ruling this month in the case of DL v A Local Authority [2012] has placed the issue of consent in the healthcare sector back into the public domain. The Court held in this case that an elderly woman who had been bullied into moving into a care home by her son has not given valid consent to this move. Specifically stated that the psychological abuse faced by the elderly woman denied her the ability to give “true consent”. The case provides an opportunity for healthcare providers and commissioners to challenge decisions made by those who do not lack capacity on the grounds that the decisions were made in circumstances pertaining to psychological abuse.

The Mental Capacity Act 2005 had provided a measure of clarity to the issue of consent for those lacking capacity by utilising existing case law to provide a definition of the what medical professionals should look at when determining if a patient had the necessary capacity to consent to medical treatment. The ‘best interests’ test was also remodelled to make it clear that the important question to ask was now, “what is the best interests of the patient when looking as much as possible into their own subjective circumstances and wishes both now and before they lacked capacity”, rather than the old question of “what, objectively, is in the patients’ best medical interests?”

The new system for establishing capacity under the Mental Capacity Act faced its’ first major test when the Deprivation of Liberty Safeguards (DOLS) came into force in April 2009. Under this heavily criticised system, the issue of the capacity of a patient or service user became critical for where a patient resided and how they were accommodated. Now, if certain patients lack capacity and do not meet the threshold for treatment under the Mental Health Act, healthcare providers and commissioners must go through rigorous tests and assessments with these patients to establish that they are not depriving them of their liberty by the way they are treating or accommodating them.

Healthcare providers and commissioners have faced (and continue to face) a greater legal and administrative burden because of the DOLS scheme, and there is now an easier mechanism by which their decisions regarding the capacity of patients can be challenged. In recent years, the Court of Protection has had to review an increasing amount of cases concerning the rights of patients (the cases having not been brought by the patient but by relatives, or third party healthcare organisation) where the capacity of the patient (who the Court is being asked to make a decision for) is very much in doubt.

The decision of the Court of Appeal in DL v A Local Authority will help the Court of Protection with some of the patients falling into the grey area between having capacity and lack of capacity. In particular, it gives the Court specific authority to go beyond the simple medical questions of whether someone lacks capacity and make its’ own enquiries as to whether a patient has had any external factors that may have influenced their ability to make decisions regarding their medical treatment or accommodation. In the case Lord Justice McFarlane referred to the Courts’ ability “to continue to act as the ‘great safety net’ described by Lord Donaldson [in the 2001 Re F case]” for vulnerable adults in society when loopholes in the law are being abused. However the implications of the new concept of “true consent” (established in the present case) will need to be unpacked and considered by individual healthcare providers and care homes.

It is interesting that this case was brought by the Local Authority against the elderly woman’s son. The case therefore demonstrates the responsibilities on all healthcare providers and commissioners to ensuring that the vulnerable adults they purport to care for are not making decisions due to psychological abuse. The extent of this responsibility is clear and seeking third party advice for individual cases will be necessary.

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